The New York State Rifle & Pistol Association, Inc. v. Bruen (2022) is an interesting case in the United States of America, due to it being a historical change in the U.S. Supreme Court’s stance on gun regulation. In the U.S. Supreme Court, it is evident that the composition of the Court and the political standing of the justices have a major influence on the judgements. However, now that the composition of the Court is balanced in favour of the conservative justices, perhaps it could be said that the rules of the game have also changed. This has led the liberal side, in this case the Respondents’, to choose a way of argumentation, which has been mostly used by the conservative side: the originalism or the historical interpretation of the law. This blog text focuses on the brief for Respondents in the Bruen case.
The Respondents state already in the first paragraph of the introduction that the claim of Petitioners “defies both the historical record and this Court’s precedents.” This seems to set the tone of arguments for them. In their opinion, the Petitioners have spent most of their brief addressing a question which was not disputed: is the right to carry arms outside the home for self-defence embodied by the Second Amendment. The Respondents argue that, in the U.S., there has always been some form of restrictions which were used in public places. Thus, the carrying of a firearm has also historically been conditional. According to the Respondents, this settled practice dates “from medieval England through this Nation’s founding and beyond.”
In the Petitioners’ view the right to carry arms is guaranteed by the Second Amendment. New York’s denial to grant the two individuals the license for self-defence is, thus, a violation of that right. The Respondents state that in Heller it was recognized that individuals have right “to keep and bear arms” but this entails only the “core lawful purpose.” The right does not include the possibility to carry arms only because the self-defence is potentially needed everywhere. Contrary to what the Petitioners claim have local officials long had freedom to decide the circumstances in which it is possible to carry firearms in public. Historically, just the carrying of a firearm in populous areas could constitute circumstances “apt to terrify the People.” The Petitioners leave out vital information which could be important when considering the historical interpretation of the law. This then leads the Respondents to fill in these blank spaces and to correct the historical inaccuracies. It is certainly in the Petitioners interest to convince the Court of their arguments, but it still seems quite peculiar.
The Petitioners also raise the question whether the discretion given by the New York law to local licensing officers was against the Second Amendment. The Respondents state that the discretion that is given to local officers is neither “boundless” nor “unreviewable.” The licensing decisions can be challenged in New York courts and will be set aside if a decision is “arbitrary or capricious” or contrary to law. The Respondents note about the long historical tradition that New York has followed, and that New York’s law is less restrictive than its historical antecedents. Therefore, it is not possible that the law could violate “historically rooted constitutional norms.”
The Petitioners suggest that the discretion in “proper cause” was historically intended to disarm “disfavored groups” such as Black Americans and immigrants. On the contrary, according to the Respondents, such laws were crucial for the protection of “freedmen from the violence and intimidation perpetrated by whites” in the postbellum South. Also, there is nothing in the historical records that could uphold the claim of the Petitioners that such laws were of anti-immigrant intent. It is evident that the Petitioners attempt to distort history for their own benefit.
The most interesting detail in the Bruen case is the quantity of historical arguments on the side of the Respondents. As previously said, this is a quite unusual approach for a liberal side to choose. The originalism is mostly used by conservatives to advance their arguments in courts by using history inaccurately. Could this be the new approach for the liberals?
The Bruen case demonstrates the absurdity of the U.S. Supreme Court. The political standing of the justices has a major role in deciding the end result. The Respondents used the rules set by the other side expertly against them. They argued with a historical interpretation of law, only to fail in the end due to the justices’ political standings. The new standard seems to be historical inaccuracies and political agendas. As soon as the balance of the political parties favours the other side, the whole roulette might start anew.
T. A. M. V.